Lecture du 30.03.2009
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Transcript of Lecture du 30.03.2009
:
DEMYSTIFYING SEBI TAKEOVER CODE
Pavan Kumar Vijay
AKEOVER
SHARES
CONTROL
BOTH SHARES & CONTROL
Acquisition
Lifting the veil
Understanding shares
REG 2(k)
Shares carrying voting rights & any security which would entitle to receive shares with voting rights in future But shall not include PREFERNCE SHARES
ISSUE
What is the status of partly paid shares under SAST Regulations, 1997?
The partly paid up shares are also shares under Takeover Code as voting rights is embedded in partly paid up shares.
REG 2(c)
Control is the right to
Appoint majority of the directors
To control the management
Control the policy decisions
By virtue of Shareholding or Management rights or Shareholders Agreements or Voting Agreements or in any other manner.
Understanding control
Thresholds defined
FOR COMPLIANCE
Acquisition of more than 5%, 10%, 14%, 54% & 74% [Regulation 7]
Persons, who are holding between 15% - 55%, acquisition/ sale aggregating more than 2% or more voting rights [Regulation 7(1A)]
Regulation
No.
By whom To whom Time limit
7(1) Any person
who acquires
more than
5%, 10%, 14%,
54%, 74%
Company
Stock
Exchange
2 Days
7 (1A) Any person
who holds 15%-
55% shares and
purchases/sells
more than 2%
shares
Company
Stock
Exchange
2 Days
7 (3) Target
Company
Stock
Exchange
7Days
Compliance Chart – Regulation 7
Thresholds defined
FOR OPEN OFFER
Acquisition more than 15% or more voting rights [Regulation 10]
Persons, who are holding between 15% - 55%, acquisition more than 5% or more voting rights in a financial year.[Regulation 11(1)]
Persons, who are holding more than 55%, acquisition of single share or voting right other than by way of open market acquisition or Buy-back[Regulation 11(2)]
Exemptions under Takeover Code
Exemptions under Takeover Code
Key Exemptions
Whether exemption is available from SEBI Takeover Code?
No
Exemption is available only from the provisions of Regulation 10, 11 & 12.
The provisions of regulation 7 are nevertheless required to be complied.
Exemptions
Inter – se transfer
Reg 3(1)(e)
An Insight
Acquirer & Persons acting in concert
Relatives under Companies Act, 1956
Group under MRTP Act, 1969
Qualifying Promoters
Categories
Categories for Inter-se transfer
Main Features
Group here is signifying the group as
defined under MRTP Act, 1959.
Where persons constituting such group
have been shown as group in the last
published Annual Report of the Target
Company.
Category I – Inter-se Transfer amongst Group
Main Features
Relatives under this regulation means the
Relatives defined under Section 6 &
Schedule 1A under Companies Act, 1956.
The definition of relative u/s 6 includes
Spouse
Members of HUF
Relative mentioned in Schedule 1A.
Schedule 1A gives a list of 22 persons.
Category II – Inter-se transfer amongst relatives
Qualifying Indian
Promoter & Foreign
Collaborators, who are
shareholders.
Category III – Inter-se transfer for Qualifying Promoters
Qualifying Promoters
Category III – Promoters… contd
Category IV –… contd
Category IV – Acquirer and Persons acting in concert
ACQUIRER
Reg 2(b)
PAC
Reg2(e)
Exemption available only after 3 years from the date of closure of open offer made under these Regulations.
Pre- Conditions for availing Inter- se transfer Conditions Category I
(Group)Category II(Relative)
Category III
(Qualifying Promoter)
Category IV
(Acquirer & PAC)
i. Transfer is at a price > 25% of the price determined in terms of Reg 20(4) & 20(5) of SEBI (SAST) Regs, 1997.
N N Y Y
ii. 3 yrs holding of shares by transferee & transferor.
N N Y N
iii. Compliance of Regulation 6, 7 & 8.
Y Y Y Y
Checks & Balances under Regulation 3
C
O
M
P
L
I
A
N
C
EReg 3(3) Reg 3(4) Reg 3(5)
Advance Intimation (4 days in Advance)
Report
(21 days of acquisition)
Fees to be accompanied with Report
(Rs 25000)
Inter-se transfer is a good tool for
consolidation of holdings…………..
However, the exemption is available subject to strict compliance of Regulation 3(3),3(4) & 3(5).
Concluding Remarks
Recent Changes in Takeover Regulations
Recent Amendments SEBI allowed extra creeping acquisition limit of
5% Requirement of disclosure of pledge shares Relaxation from provisions of Open Offer
Recent Judicial Pronouncements SEBI Orders SEBI Informal Guidance Takeover Panel Exemptions
Takeover Battle of Orissa Sponge and Iron Steel Limited
An Analysis of Recent Regulatory Changes
Extra Creeping Acquisition Limit of 5%Under regulation 11 (2)
Background
Extra Creeping Acquisition Limit of 5%
Global Economic Fallout
Extra Creeping Acquisition Limit of 5%
No acquisition is allowed through Bulk Deal/ Block Deal/ Negotiated Deal
Queries and Answers
Whether acquisition of 5% is allowed for one time acquisition or it is allowed during one financial year?
During one financial year and not for one time acquisition.
Queries and Answers
53%
56%
55% 55%
What is maximum number of shares that can be acquired?
2% 5%
Open OfferA
B
Creeping acquisition limit for shareholders holding less than 55% and more than 55% shares.
Queries and Answers
Whether disclosure under regulation 7 (1A) is required to be made in case of acquisition of 5% shares by a person holding more than 55% shares but less than 75% shares?
As per the strict interpretation of law, there is no legal requirement, however as per the intent of law, disclosure
under regulation 7 (1A) should be made.
Background
Requirement of Disclosure of Pledged Shares&
Relaxation from provisions of Chapter III
The SATYAM fiasco brings amendment
Now, the question is
Is pledge of shares bad???
Requirement of Disclosure of Pledged SharesLegal Requirements
Prior to Jan 2009
Regulation 7 of SEBI Takeover Code requires the pledgee of shares to make disclosures as any other acquirer.
After January 2009
SEBI (Substantial Acquisition of Shares)
Listing Agreement
Requirement of Disclosure of Pledged SharesLegal Requirements
Compliances under SEBI (SAST) Regulations
Reg
ulati
on
No.
Particulars By whom To
whom
Time line
8A(1
)
Information about all the
shares pledged by the
promoters of the company
before the notification of
the amendment.
Promoter or
every person
forming part of
the promoter
group
Compan
y
Within 7
working Days
of notification
of the
amendment
upto February
06.2009.
8A(2
)
On pledge of shares Promoter or
every person
forming part of
the promoter
group
Compan
y
Within 7
working days
from the date
of creation of
pledge of
shares.
Compliances under SEBI (SAST) Regulations
Reg
ulati
on
No.
Particulars By whom To
whom
Time line
8A(3
)
On invocation of pledge
Promoter or
every person
forming part of
the promoter
group
Compan
y
Within 7
working days
from the date
of invocation
of pledge on
shares.
8A(4
)
Information received under
regulation 8A (1), (2) and
(3) if the total number of shares pledged
during the quarter along with the
shares already pledged exceeds
25000 or 1% of the total paid up
capital of the company whichever is
lower.
Company Stock
Exchan
ge
Within 7
working days
of receipt of
information
under
regulation 8A
(1), (2) and
(3).
Compliances under Listing Agreement
Clause 35 – Change in format of Shareholding Pattern by including the column for details of shares pledged by the promoters.
Clause 41 – Change in format of Unaudited Financial results for inclusion of details of shares pledged by the promoters.
Queries and Answers
Whether Disclosure under 8A (4) is required?
i. Pledge of 25000 shares or 1% shares in a quarter Yes
ii. Pledge of 10,000 (0.50%) shares in the previous
quarter, and 16,000 (0.80%) shares in this quarter Yes
Queries and Answers
Whether Disclosure under 8A (4) is required?
i. Pledge of 25000 shares or 1% shares in a quarterYes
ii. Pledge of 10,000 (0.50%) shares in the previous
quarter, and 16,000 (0.80%) shares in this quarterYes
iii. Pledge of 25000 shares or 1% shares in the
previous quarter,
but no pledge in this quarter No
When disclosures under 8A(4) required? i. within 7 days of the receipt of information
under regulation 8A(2) and 8A(3)
or Ii. at the end of the quarter
Within 7 days of Receipt of information
Queries and Answers
Queries and Answers
Whether Banks and FIs are required to make disclosures when they sell the pledged shares?
No, regulation 7 contains an exception for the Banks and FIs to make disclosures.
Queries and Answers
Whether Banks and FIs are required to make disclosures when they transfer physical shares in their own name?
Yes, transfer of shares in their own name will amount to acquisition and banks will
require to make disclosures.
Relaxation from provisions of Chapter III
Key Provisions of Chapter III
Regulation 10
Regulation 11 Provisions triggering requirement of Open Offer
Regulation 12
Regulation 20 Determination of Price of Open Offer
Regulation 13 – 29 Provision relating to process of Open offer
Pre-Conditions for Relaxation
Government has appointed its own BOD due to
mismanagement.
New directors have devised a competitive plan requiring
bids from prospective acquirers.
The plan is reasonable and fair.
It provides the requisite details of process.
As per the New BOD, the provisions of this chapter are
likely to act as impediment to implementation of the plan
Queries and Answers
Whether in order to avail the exemption under regulation 29A, all the conditions should be satisfied?
Yes
Queries and Answers
Whether the exemption under regulation 29A is automatic, if all the conditions are satisfied?
No, Relaxation is subject to the Approval of Securities and Exchange Board of India (SEBI)
Comparison of Regulation 4 and 29A
Exemption from SEBI Takeover Panel
Relaxation from Compliances of Open
Offer
Comparison of Regulation 4 and 29A
Criteria Regulation 4 Regulation 29A
Purpose Exemption from Open Offer
Relaxation from Open Offer
Scope Applicable to Regulation 10, 11 and 12 only
Applicable to all the provisions of Chapter III
Pre-Condition
s
No Yes
Competitive Bid
Not Applicable Not Allowed
Time Line Prescribed Not Prescribed
An Analysis of Recent Judicial Pronouncements
Issue of shares with differential voting rights
Issue of shares with differential voting rights
An Analysis of Recent Judicial Pronouncements
Whether the professional director will be deemed as persons having control over the
company?
An Analysis of Recent Judicial Pronouncements – Contd…
Compliance of regulation 6, 7 & 8 – A pre-condition for exemption?
An Analysis of Recent Judicial Pronouncements – Contd…
Failure of make PA vs. Failure to make PA in time
An Analysis of Recent Judicial Pronouncements – Contd…
Acquisition of shares by Broker – Business or investment?
An Analysis of Recent Judicial Pronouncements – Contd…
Violation of regulations vs. intention – which is important for penalty
An Analysis of Recent Judicial Pronouncements – Contd…
Whether consent of promoter is necessary to treat him as a promoter?
An Analysis of Recent Judicial Pronouncements – Contd…
How Prior holding of 3 years will be calculated in case of demerged company for claiming
exemption?
An Analysis of Recent Judicial Pronouncements – Contd…
What the relevant date for calculating 4 working days for PA in case of indirect
acquisition?
An Analysis of Recent Judicial Pronouncements – Contd…
Whether the violation of Open offer can be settled on Consent Terms from SEBI?
Takeover Battle of Orissa Sponge Iron and Steel Limited
Facts of the Case
Analysis of the Case
Open offer Name of
Acquirer
Total
Number of
Shares
which can be
acquired
under the
Open Offer
Offer Price Market price
(as on
09.03.09)
Original Offer Bhushan
Power and
Steel Limited
52,00,000 Rs. 300 Rs. 416.55
First
Competitive
Bid
Mounteverest
Trading &
Investment
Ltd.
61,00,000 Rs. 310 Rs. 416.55
Second
Competitive
Bid
Bhushan
Energy
Limited
61,00,000 Rs. 330 Rs. 416.55
Unique features of the Case
First case of Competitive Bid in the history of Indian
Takeovers
Market Price increased from Rs. 92 to Rs. 437 (Approx. 4
times) in 3 months.
Investors are leading beneficiaries
Queries and Issues
Whether an independent open offer can be made during the continuance of an existing open offer, pursuant to acquisition of shares beyond the specified thresholds?
Whether the warrants can be converted during the pendency of open offer if such conversion results into triggering of open offer, other than by acquirer?
Whether a person who has made an open offer can sell his existing stake if another offer is attractive enough to renounce the control?